Case update (4): Constructive unfair dismissal – long notice defeats claim

Summary: Does giving longer notice than necessary under contract defeat an employee’s claim for constructive unfair dismissal?

Yes, says the EAT inCockram v Air Products plc available here.

Background:

An employee wanting to show constructive dismissal must demonstrate that:

• the employer committed a breach that was so serious that it entitled the employee to treat the contract as at an end;
• he resigned in response to that breach; and
• he did not waive the breach or affirm the contract, for example by delaying too long before deciding to accept the breach and resign.

Typically, the employee will resign and leave pretty much immediately but it is possible for the employee to give and work the notice whilst reserving the right to claim constructive dismissal. It is accepted that they may need the financial benefit of some of the notice period or want to remain at work for a short time, for example, to assist a colleague with handover.

Facts: The employee had made a grievance complaint against his line manager which was rejected. He resigned in a letter to his line manager later that month, stating that he regarded the line manager’s conduct and that of the employer as being so serious that he could not carry on with the company and that he was giving notice to expire seven months later. He went on “I have no other work secured to enable me to leave immediately and I need to work for a reasonable period of time and it is for this reason only that I am giving notice.”

The employee subsequently brought a claim for unfair constructive dismissal. The employer argued that the employee had waived any breach, by giving seven months’ notice – significantly longer than the three month notice period required by his contract, purely for financial reasons.

The Tribunal dismissed the employee’s claim on the ground of having no reasonable prospect of success. The Tribunal considered that the employee had been motivated by his own financial reasons when he gave long notice of termination and held that the employee had affirmed the contract.

The employee appealed to the EAT. The EAT dismissed the appeal and agreed with the Tribunal’s finding.

The EAT said that where an employee gives notice in excess of that required by their contract, they are offering additional performance of the contract to that which is required by it. Although the employee is expressly permitted to give notice under the Employment Rights Act 1996 when resigning in response to a breach of contract, additional performance may be consistent with affirmation of the contract.

The EAT therefore held that Tribunal was entitled to find that the fact of the employee giving notice that greatly exceeded his contractual notice period, solely for his own financial reasons, had the effect of affirming the contract.

Implications: Good news for employers in that potential unfair dismissal claimants who give longer notice than their contract provides are unlikely to succeed.

However, it is worth noting that the EAT was reluctant to lay down any set rules about how long the notice period had to be before the right to bring unfair dismissal proceedings was lost. It said that a Tribunal would need to look at all the circumstances to decide whether an employee had affirmed the contract, not just the length of the notice period. However it is a fair assumption that most employees who give no more than the contractual notice period are unlikely to be taken as affirming the contract.